Used Car Purchase from Dealer Is Safest Choice, says OGH

Nov 3, 2023 Benn-Ibler Rechtsanwälte

Buying a used car can be a tricky business. Sometimes cars are not offered by the real owner, and the risk of the owner demanding their car back is high. But now the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) is backing those who buy a used car from a dealer.

In the original case, the defendant bought a used car from a used car dealer. The car was originally owned by a car dealer (the plaintiff) who leased the car to ‘V’. The plaintiff issued a declaration of transfer of use to V, but retained the original vehicle registration document and the duplicate key. V obtained a duplicate of the printout from the registration database and registered the car in his name. E resold the car to a used car dealer, handed over the registration certificate and the "1st duplicate" of the printout from the registration database, and pretended that he had forgotten the spare key and would bring it later. The defendant bought the car from the dealer. He was given the documents and told that the duplicate key would be provided later.

The plaintiff then demanded the return of their vehicle under Section 366 of the Austrian General Civil Code (Allgemeines Bürgerliches Gesetzbuch, hereinafter ABGB). The defendant argued that, as a bona fide purchaser, he had acquired the vehicle in good faith (Section 367 ABGB).

This was also the view of the OGH:

According to Section 368(1) of the Austrian Civil Code, in the case of a purchase from an entrepreneur in the ordinary course of business, it is sufficient to believe in good faith that the seller is authorised to dispose of the goods. The requirements for individuals buying a used car from a trader must not be excessive. On the contrary, they can assume that the company has carried out sufficient checks on the authorisation of the previous owner. Private individuals may not have the expertise required to critically examine the vehicle documents.

In particular, the defendant did not have to conclude from the note "1st duplicate" in the printout from the licence database that this document had been obtained illegally. The absence of the duplicate key did not give rise to any doubts either, since the defendant had been assured that the key would be provided at a later date.

OGH 8 Ob 73/23b (29 August 2023)